[Ord. of 4-5-1999]
(a)Â
Title. This chapter shall be known and may be cited as the "Old Town
Cable Communications Regulatory Ordinance."
(b)Â
Purpose. The City of Old Town finds that the development of cable
television systems has the potential of greatly benefitting and having
a positive impact on the people of Old Town. Cable technology is rapidly
changing, and cable is expected to play an essential role as part
of the City's basic infrastructure. Cable television systems
extensively make use of scarce and valuable public rights-of-way,
in a manner different from the way in which the general public uses
them, and in a manner reserved primarily for those that provide services
to the public, such as utility companies. The City finds that public
convenience, safety, and general welfare can best be served by establishing
regulatory powers vested in the City or such persons as the City so
designates to protect the public and to ensure that any franchise
granted is operated in the public interest. In light of the foregoing,
the following goals and the state policies set forth at 30-A M.R.S.A.
§ 3008(1), among others, underlie the provisions set forth
in this chapter:
(1)Â
Cable should be available to as many City residents as possible.
(2)Â
A cable system should be capable of accommodating both the present
and reasonably foreseeable future cable-related needs of the community.
(3)Â
A cable system should be constructed and maintained during a franchise
term so that changes in technology may be integrated to the maximum
extent possible into existing system facilities.
(4)Â
A cable system should be responsive to the needs and interests of
the local community.
(c)Â
The City intends that all provisions set forth in this chapter be
construed to serve the public interest and the foregoing public purposes,
and that any franchise issued pursuant to this chapter be construed
to include the foregoing findings and public purposes as integral
parts thereof.
[Ord. of 4-5-1999]
For the purposes of the chapter, the following terms, phrases,
words, and abbreviations shall have the meanings given herein, unless
otherwise expressly stated. When not inconsistent with the context,
words used in the present tense include the future tense; words in
the plural number include the singular number and words in the singular
number include the plural number; and the masculine gender includes
the feminine gender. The words "shall" and "will" are mandatory, and
"may" is permissive. Unless otherwise expressly stated, words not
defined herein shall be given the meaning set forth in Title 47 of
the United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. §§ 521
et seq., as amended, and, if not defined therein, their common and
ordinary meaning.
Any person who owns or controls, is owned or controlled by,
or is under common ownership or control with a grantee.
Any service tier that includes the retransmission of local
television broadcast signals.
The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521
et seq., as amended by the Cable Competition and Consumer Protection
Act of 1992, the Telecommunications Act of 1996, and as it may be
further amended from time to time.
Any video programming provided over a cable system, regardless
of service tier, including installation or rental of equipment used
for the receipt of such video programming, other than (a) video programming
carried on the basic cable service tier; and (b) video programming
offered on a per-channel, or per-program basis.
This term shall have the meaning given it by the Cable Act,
as amended.
A facility consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable television service which includes
video programming and which is provided to multiple subscribers within
the City, but such term does not include (i) a facility that serves
only to retransmit the television signals of one or more television
broadcast stations; (ii) a facility that serves subscribers without
using any public right-of-way; (iii) a facility of a common carrier
which is subject, in whole or in part, to the provisions of Title
II of the Communications Act of 1934, except that such facility shall
be considered a cable system to the extent such facility is used in
the transmission of video programming directly to subscribers, unless
the extent of such use is solely to provide interactive on-demand
services; (iv) an open video system that complies with federal law;
or (v) any facilities of any electric utility used solely for operating
its electric utility systems. A reference to a cable system refers
to any part thereof, including, without limitation, facilities located
in the interior of a subscriber's residence or other premises.
The City of Old Town, Maine, and any agency, department,
or agent thereof.
The Federal Communications Commission, its designee, or any
successor governmental entity thereto.
The non-exclusive authorization granted in accordance with
this chapter to construct, operate, and maintain a cable system along
the public right-of-way within all or a specified area of the City.
Any such authorization, in whatever form granted, shall not mean or
include any license or permit required for the privilege of transacting
and carrying on a business within the City as required by the ordinances
and laws of the City, or for attaching devices to poles or other structures,
whether owned by the City or a private entity, or for excavating or
performing other work in or along public rights-of-way.
A contract entered into in accordance with the provisions
of this chapter between the City and a grantee that sets forth, subject
to applicable state and federal law, the terms and conditions under
which a franchise will be exercised.
The area of the City that a grantee is authorized to serve
by its franchise agreement.
The natural person(s), partnership(s), domestic or foreign
corporation(s), association(s), joint venture(s), or organizations(s)
of any kind which has or have been granted a cable television franchise
by the City.
Those items within the scope of the term "gross revenue"
as used in the Cable Act, as amended, including any and all cash,
credits, property or other consideration of any kind or nature received
directly or indirectly by a grantee, an affiliate of a grantee, or
any person in which a grantee has a financial interest, or by any
other entity that is a cable operator of a cable system arising from,
attributable to, or in any way derived from the operation of a grantee's
cable system to provide cable service, including the facilities associated
therewith. Gross revenues include, but are not limited to, monthly
fees charged subscribers for any basic, optional, premium, per-channel,
or per-program service; installation, disconnection, reconnection,
and change-in-service fees; leased channel fees; late fees and administrative
fees; fees, payments, or other consideration received from programmers
for carriage of programming on the system; revenues from converter
rentals or sales; advertising revenues; barter; revenues from program
guides; and revenues from home shopping channels. Gross revenues earned
on a system-wide basis shall be allocated to the City on the basis
of the ratio of the subscribers in the City to the total subscribers
in all the franchising authorities served by the system, as determined
by the most recent U.S. Census, or any similar method agreed upon
by the City and a grantee. Gross revenues shall be the basis for computing
the franchise fee under this chapter. Gross revenues shall not include
(i) to the extent consistent with generally accepted accounting principles,
actual bad debt write-offs; provided, however, that all or part of
any such actual bad debt that is written off but subsequently collected
shall be included in gross revenues in the period collected; (ii)
the value of free cable services provided to grantee's employees
or to the City; (iii) revenues received by an affiliate from the grantee
on which the grantee has already paid the franchise fee; (iv) any
taxes on services furnished by a grantee which are imposed directly
on any subscriber or user by the state, City, or other governmental
unit and which are collected by a grantee on behalf of said governmental
unit; and (v) revenues from the provision of telecommunications services.
An individual, partnership, association, joint stock company,
organization, corporation, or any lawful successor thereto or transferee
thereof, but such term does not include the City.
The surface, the air space above the surface, and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway,
easement, or similar property in which the City now or hereafter holds
any property interest, or may lawfully grant the use of, which, consistent
with the purposes for which it was dedicated, may be used for the
purpose of installing and maintaining a cable system. No reference
herein, or in any franchise agreement, to a "public right-of-way"
shall be deemed to be representation or guarantee by the City that
its interest or other right to control the use of such property is
sufficient to permit its use for such purposes, and a grantee shall
be deemed to gain only those rights to use as are properly in the
City and as the City may have the undisputed right and power to give.
Any sale, exchange, or barter transaction.
A package of two or more cable services for which a separate
charge is made by the grantee, other than a package of premium and
pay-per-view services that are also sold on a true a la carte basis.
Any person who legally receives cable service, whether or
not a fee is paid for such service.
Any transaction in which (i) an ownership or other interest
in a grantee, its cable system, or any person that is a cable operator
of the cable system, or any person that is a cable operator of the
cable system is transferred from one person or group of persons so
that control of a grantee is transferred; or (ii) the rights or obligations
held by a grantee under a franchise agreement are transferred or assigned
to another person or group of persons. Control for these purposes
means working control, in whatever manner exercised. By way of illustration
and not limitation, the addition, deletion, or other change of any
general partner of a grantee, any person who owns or controls a grantee,
or a cable operator of a cable system is such a change of control.
A person or organization utilizing a channel or equipment
and facilities for purposes of producing or transmitting material,
as contrasted with the receipt thereof in the capacity of a subscriber.
[Ord. of 4-5-1999]
(a)Â
Grant of franchise. The City may grant one or more cable television
franchises, and each such franchise shall be awarded in accordance
with and subject to the provisions of this chapter. In no event shall
this chapter be considered a contract between the City and a grantee.
(b)Â
Franchise required. No person may construct or operate a cable system
without a franchise granted by the City unless otherwise authorized
by law, and no person may be granted a franchise without having entered
into a franchise agreement with the City pursuant to this chapter.
(c)Â
Franchise characteristics:
(1)Â
Authority granted by franchise. A franchise authorizes use of public
rights-of-way for installing cables, wires, lines, optical fiber,
underground conduit, and other devices necessary and appurtenant to
the operation of a cable system within a franchise area, but does
not expressly or implicitly authorize a grantee to provide service
to, or install a cable system on private property without owner consent
(except for use of compatible easements pursuant to Section 621 of
the Cable Act, 47 U.S.C. § 541 (a)(2), or to use publicly
or privately owned conduits without a separate agreement with the
owners.
(2)Â
Term of franchise. The term of a franchise may not exceed 15 years.
(3)Â
Non-exclusivity. A franchise is non-exclusive and will not explicitly
or implicitly preclude the issuance of other franchises to operate
cable systems within the City; affect the City's right to authorize
use of public right-of-way by other persons to operate cable systems
or for other purposes as it determines appropriate; or affect the
City's right to itself construct, operate, or maintain a cable
system, with or without a franchise.
(4)Â
Franchise agreement constitutes contract. Once a franchise agreement
has been accepted and executed by the City and a grantee, such franchise
agreement shall constitute a contract between the grantee and the
City, and the terms, conditions, and provisions of such franchise
agreement, subject to the ordinance in effect as of the effective
date of such franchise agreement and all other duly enacted and applicable
laws, shall define the rights and obligations of the grantee and the
City relating to the franchise. Nothing in this chapter or a franchise
agreement shall be deemed a waiver of or restriction on the City's
police powers, or a waiver of any of the terms of any City ordinance
regarding the use or management of the public right-of-way or intended
to protect the public's safety.
(5)Â
Use of public rights-of-way. All privileges prescribed by a franchise
shall be subordinate to any prior lawful occupancy of the public right-of-way,
and the City reserves the right to reasonably designate where a grantee's
facilities are to be placed within the public right-of-way. The rights
and privileges granted pursuant to a franchise shall not be in preference
or hindrance to the right of the City, or other governmental agency,
improvement district or other authority having jurisdiction, and should
a cable system in any way interfere with the construction, maintenance,
or repair of such public works or improvements, the grantee shall
promptly, at its own expense, protect or relocate its system or part
thereof, as directed by the City or other authority having jurisdiction.
(6)Â
Franchise personal to grantee. A franchise shall be a privilege that
is in the public trust and personal to the original grantee. No transfer
of a franchise shall occur without the prior consent of the City and
unless application is made by the grantee and City approval obtained,
pursuant to this chapter and the franchise agreement; provided, however,
that the grantee may make assignments of collateral to a lender upon
reasonable prior notice to the City. No such assignment of collateral
shall be deemed to permit any person to avoid any obligations under
this chapter or a franchise agreement.
(7)Â
Exclusive contracts unenforceable. A franchise holder may not enter
into or enforce any exclusive contract with a subscriber (including,
but not limited to, a building owner) as a condition of providing
or continuing service.
(d)Â
Grantee subject to other laws, police power:
(1)Â
Compliance with laws. A grantee shall at all times be subject to
and shall comply with all applicable federal, state, and local laws.
A grantee shall at all times be subject to all lawful exercise of
the police power of the City, including all rights the City may have
under 47 U.S.C. § 552.
(2)Â
No waiver of City rights. No course of dealing between a grantee
and the City, or any delay on the part of the City in exercising any
rights hereunder, shall operate as a waiver of any such rights of
the City or acquiescence in the actions of a grantee in contravention
of rights except to the extent expressly waived by the City or expressly
provided for in a franchise agreement.
(3)Â
City has maximum regulatory authority. The City shall have the maximum
plenary authority to regulate cable systems, grantees, and franchises
as may now or hereafter be lawfully permissible; except where rights
are expressly waived by a franchise agreement, they are reserved,
whether expressly enumerated or not. The City also expressly reserves
the right to amend this chapter or adopt one or more other ordinances
to address the activities of providers of telecommunications services
and providers of video programming services not otherwise subject
to this chapter, to the maximum extent permitted by state and federal
law.
(e)Â
Interpretation of franchise terms:
(1)Â
Provision to City's benefit controlling. In the event of a conflict
between this chapter as effective on the effective date of a franchise
agreement and that franchise agreement, the terms of this chapter
as effective on the effective date of that franchise agreement shall
control, except as otherwise provided in a franchise agreement.
(2)Â
Liberal construction. The provisions of this chapter and a franchise
agreement will be liberally construed in favor of the City in order
to effectuate their purposes and objectives and to promote the public
interest, except as otherwise provided in a franchise agreement.
(3)Â
Governing law. Except as to matters that are governed solely by federal
law or regulation, a franchise agreement will be governed by and construed
in accordance with the laws of the State of Maine.
(f)Â
Operation of a cable system without a franchise. Any person who occupies
public rights-of-way for the purpose of operating or constructing
a cable system and who does not hold a valid franchise from the City
shall be subject to all provisions of this chapter, including, but
not limited to, its provisions regarding construction and technical
standards and franchise fees. In its discretion, the City at any time
may require such person to enter into a franchise agreement within
30 days of receipt of a written notice by the City that a franchise
agreement is required; require such person to remove its property
and restore the area to a condition satisfactory to the City within
such time period; remove the property itself and restore the area
to a satisfactory condition and charge the person the costs therefor;
and/or take any other action it is entitled to take under applicable
law, including filing for and seeking damages under trespass. In no
event shall a franchise be created unless it is issued by action of
the City and subject to a franchise agreement.
(g)Â
Right of condemnation reserved. Nothing in this chapter or any franchise
agreement shall limit any right the City may have to acquire by eminent
domain or otherwise any property of grantee.
(h)Â
Acts at grantee's expense. Any act that a grantee is or may
be required to perform under this chapter, a franchise agreement,
or applicable law shall be performed at the grantee's expense,
unless expressly provided to the contrary in this chapter, the franchise
agreement, or applicable law.
[Ord. of 4-5-1999]
(a)Â
Written application:
(1)Â
Application requirement. A written application shall be filed with
the City for (i) grant of an initial franchise; (ii) renewal of a
franchise under 47 U.S.C. § 546 (a) — (g); or (iii)
modification of a franchise agreement pursuant to this chapter or
a franchise agreement. An applicant shall demonstrate in its application
compliance with all requirements of this chapter and all applicable
laws.
(2)Â
Acceptability for filing. To be acceptable for filing, a signed original
of the application shall be submitted together with 12 copies. The
City Manager may, in combination with neighboring communities, establish
a joint application procedure, provided that any such procedure conforms
with the standards of this chapter. The application must be accompanied
by the required application filing fee as set forth in subsection
(f), conform to any applicable request for proposals, and contain
all required information. All applications shall include the names
and addresses of persons authorized to act on behalf of the applicant
with respect to the application.
(3)Â
Application available for public inspection. All applications accepted
for filing shall be made available by the City for public inspection
in the office of the City Clerk during normal business hours.
(4)Â
City may waive. The City Council may waive any of the provisions of this § 23-4 by resolution for good cause shown, where application of the rule would cause manifest injustice, except for those provisions required by state or federal law. Any waiver granted shall explain the basis for the waiver and shall not unduly discriminate against any applicant.
(b)Â
Application for grant of a franchise, other than a Cable Act Renewal
franchise:
(1)Â
Application. A person may apply for an initial franchise by submitting
an application containing the information required in subsection (d)
and requesting and evaluation of that application pursuant to subsection
(b)(2). Prior to evaluating that application, the City may conduct
such investigations as are necessary to determine whether the application
satisfies the standards set forth in subsection (b)(2) additional
applications.
(2)Â
Factors in evaluating application for franchise. In evaluating an
application for a franchise, the City shall consider, among other
things, the following factors:
a.Â
The extent to which the applicant has substantially complied with
the applicable law and the material terms of any existing cable franchise
for the City.
b.Â
Whether the quality of the applicant's service under an existing
franchise in the City, including signal quality, response to customer
complaints, billing practices, and the like, has been reasonable in
light of the needs and interests of the communities served.
c.Â
Whether the applicant has the financial, technical, and legal qualifications
to provide cable service.
d.Â
Whether the application satisfies any minimum requirements established
by the City and is otherwise reasonable to meet the future cable-related
needs and interests of the community, taking into account the cost
of meeting such needs and interests.
e.Â
Whether, to the extent not considered as part of this subsection,
the applicant will provide adequate public, educational, and governmental
access channel capacity, facilities, or financial support.
f.Â
Whether issuance of a franchise is warranted in the public interest
considering the immediate and future effect on the public right-of-way
and private property that would be used by the cable system, including
the extent to which installation or maintenance as planned would require
replacement of property or involve disruption of property, public
services, or use of the public right-of-way; the effect of granting
a franchise on the ability of cable to meet the cable-related needs
and interests of the community; and the comparative superiority or
inferiority of competing applications.
g.Â
Whether the applicant or an affiliate of the applicant owns or controls
any other cable system in the City, or whether grant of the application
may eliminate or reduce competition in the delivery of cable service
in the City.
(3)Â
City determination. If the City finds that it is in the public interest
to issue a franchise considering the factors set forth above, and
subject to the applicant's entry into an appropriate franchise
agreement, it shall issue a franchise. If the City denies a franchise,
it will issue a written decision explaining why the franchise was
denied. Prior to deciding whether or not to issue a franchise, the
City may hold one or more public hearings or implement other procedures
under which comments from the public on an application may be received.
The City also may grant or deny a request for a franchise based on
its review of an application without further proceedings and may reject
any application that is incomplete. This chapter is not intended and
shall not be interpreted to grant any applicant or existing grantee
standing to challenge the issuance of a franchise to another.
(4)Â
Joint review. The City may elect to delegate review of an application
to a consortium of local governments or a formally constituted interlocal
body of which the City is a member. Any such entity shall review the
application in accordance with the standards of subsection (b) and
make a recommendation to the City. In such a case, the City Council
shall review the recommendation of the designated body and approve
or reject it in accordance with the terms of subsection (c).
(c)Â
Application for grant of a Cable Act Renewal franchise. Applications for renewal under the Cable Act shall be received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. § 546. If neither a grantee nor the City activates in a timely manner or can activate the renewal process set forth in 47 U.S.C. § 546 (a) - (g) (including, for example, if the provisions are repealed), and except as to applications submitted pursuant to 47 U.S.C. § 546 (h), the provisions of Subsection (b) shall apply and renewal request shall be treated the same as any other request for a franchise. The following requirements shall apply to renewal requests properly submitted pursuant to the Cable Act:
(1)Â
Issuance of RFP. If the provisions of 47 U.S.C. § 546 (a)
- (g) are properly invoked, the City shall issue an RFP after conducting
a proceeding to review the applicant's past performance and to
identify future cable-related community needs and interests. The City
administrator, or the administrator's designee, shall establish
deadlines and procedures for responding to the RFP, may seek additional
information from the applicant, and shall establish deadlines for
the submission of that additional information. Following receipt of
the application responding to that RFP (and such additional information
as may be provided in response to requests), the City will determine
that the franchise should be renewed, or make a preliminary assessment
that the franchise should not be renewed. This determination shall
be in accordance with the time limits established by the Cable Act.
The preliminary determination shall be made by order. If the City
determines that the franchise should not be renewed, and the applicant
that submitted the renewal application notifies the City, either in
its RFP response or within 10 working days of the preliminary assessment,
that it wishes to pursue any rights to an administrative proceeding
it has under the Cable Act, then the City shall commence an administrative
proceeding after providing prompt public notice thereof, in accordance
with the Cable Act. If the City decides preliminarily to grant renewal,
it shall prepare a final franchise agreement that incorporates, as
appropriate, the commitments made by the applicant in the renewal
application. If the applicant accepts the franchise agreement, and
the final agreement is ratified by the City, the franchise shall be
renewed. If the franchise agreement is not so accepted and ratified
within the time limits established by 47 U.S.C. § 546(c)
(1), renewal shall be deemed preliminarily denied, and an administrative
proceeding commenced if the applicant that submitted the renewal application
requests it within 10 days of the expiration of the time limit established
by 47 U.S.C. § 546 (c)(1).
(2)Â
Administrative hearing. If an administrative hearing is commenced
pursuant to 47 U.S.C. § 546(c), the applicant's renewal
application shall be evaluated considering such matters as may be
considered consistent with federal law. The following procedures shall
apply:
a.Â
The City Council shall, by order, appoint an administrative hearing
officer or officers (referred to hereafter as "hearing officer").
The City Council may appoint itself as hearing officer.
b.Â
The hearing officer shall establish a schedule for proceeding which
allows for documentary discovery and interrogatory responses, production
of evidence, and cross-examination of witnesses. Depositions shall
not be permitted unless the party requesting the deposition shows
that documentary discovery and interrogatory responses will not provide
it an adequate opportunity to require the production of evidence necessary
to present its case. The hearing officer shall have the authority
to require the production of evidence as the interests of justice
may require, including to require the production of evidence by the
applicant that submitted the renewal application and any entity that
owns or controls or is owned or controlled by such applicant directly
or indirectly. The hearing officer may issue protective orders, but
shall not prohibit discovery on the ground that evidence sought is
proprietary or involves business secrets. Any order may be enforced
by a court of competent jurisdiction or by imposing appropriate sanctions
in the administrative hearing.
c.Â
The hearing officer may conduct a prehearing conference and establish
appropriate prehearing orders. Intervention by non-parties is not
authorized except to the extent permitted by the Cable Act.
d.Â
The hearing officer shall require the City and the applicant to submit
prepared testimony prior to the hearing. Unless the parties agree
otherwise, the applicant shall present evidence first, and the City
shall present evidence second.
e.Â
Any reports or the transcript of summary of any proceedings conducted
pursuant to 47 U.S.C. § 546(a) shall for purposes of the
administrative hearing be regarded no differently than any other evidence.
The City and the applicant must be afforded full procedural protection
regarding evidence related to these proceedings, including the right
to refute any evidence introduced in these proceedings or sought to
be introduced by the other party. Both shall have the opportunity
to submit additional evidence related to issues raised in the proceeding
conducted pursuant to 47 U.S.C. § 546(a).
f.Â
Following completion of any hearing, the hearing officer shall require
the parties to submit proposed findings of fact with respect to the
matters that the City is entitled to consider in determining whether
renewal ought to be granted. Based on the record of the hearing, the
hearing officer shall then prepare written findings with respect to
those matters, and submit those findings to the City Council and to
the parties (unless the hearing officer is the City Council, in which
case the written findings shall constitute the final decision of the
City).
g.Â
If the hearing officer is not the City Council, the parties shall
have 30 days from the date the findings are submitted to the City
Council shall thereafter issue a written decision granting or denying
the application for renewal, consistent with the requirements of the
Cable Act and based on the record of such proceeding. A copy of the
final decision of the City Council shall be provided to the applicant.
h.Â
The proceeding shall be conducted with the due speed.
i.Â
In conducting the proceedings, and except as inconsistent with the
foregoing, the hearing officer will follow the Maine Administrative
Procedures Act or the successor statutes thereto. The hearing officer
may request that the City Council adopt additional procedures and
requirements as necessary in the interest of justice.
(3)Â
Informal renewal applications. This subsection does not prohibit
any grantee from submitting an informal renewal application pursuant
to 47 U.S.C. § 546(h), which application may be granted
or denied in accordance with the provisions of 47 U.S.C. § 546(h).
(4)Â
Consistency with Cable Act. The provisions of this chapter shall
be read and applied so that they are consistent with Section 626 of
the Cable Act, 47 U.S.C. § 546.
(d)Â
Contents of applications. An RFP for the grant of a renewal franchise
under 47 U.S.C. § 546(c) shall require, and any application
for a initial or renewal franchise (other than an application submitted
pursuant to 47 U.S.C. § 546(h) shall contain, at a minimum,
the following information:
(1)Â
Identification of applicant and its ownership and control. Name and
address of the applicant and identification of the ownership and control
of the applicant, including: the names and addresses of the 10 largest
holders of an ownership interest in the applicant and affiliates of
the applicant, and all persons with 5% or more ownership interest
in the applicant and its affiliates; the persons who control the applicant
and its affiliates; all officers and directors of the applicant and
its affiliates; and any other business affiliation and cable system
ownership interest of each named person.
(2)Â
Statement of applicant's technical ability. A demonstration
of the applicant's technical ability to construct and/or operate
the proposed cable system, including identification of key personnel.
(3)Â
Statement of applicant's legal qualifications.
a.Â
A demonstration of the applicant's legal qualifications to construct
and/or operate the proposed cable system, including but not limited
to a demonstration that the applicant meets the following criteria:
1.Â
The applicant must not have submitted an application for an
initial or renewal franchise to the City, which was denied on the
ground that the applicant failed to propose a system meeting the cable-related
needs and interests of the community, or as to which any challenges
to such licensing decision were finally resolved adversely to the
applicant, within three years preceding the submission of the application.
2.Â
The applicant must not have had any cable television franchise
validly revoked by any licensing authority within three years preceding
the submission of the application.
3.Â
The applicant must have the necessary authority under Maine
law to operate a cable system.
4.Â
The applicant shall not be issued a franchise if it may not
hold the franchise as a matter of federal law. An applicant must have,
or show that it is qualified to obtain, the necessary federal licenses
or waivers required to operate the system proposed.
5.Â
The applicant shall not be issued a franchise if, at any time
during the 10 days preceding the submission of the application, the
applicant was convicted of any act or omission of such character that
the applicant cannot be relied upon to deal truthfully with the City
and the subscribers of the cable system, or to substantially comply
with its lawful obligations under applicable law, including obligations
under consumer protection laws and laws prohibiting anticompetitive
acts, fraud, racketeering, or other similar conduct.
6.Â
The applicant shall not be issued a franchise if it files materially
misleading information in its application or intentionally withholds
information that the applicant lawfully is required to provide.
7.Â
The applicant shall not be issued a franchise if an elected
official of the City holds a controlling interest in the applicant
or an affiliate of the applicant.
b.Â
Notwithstanding the foregoing, the City shall provide an opportunity
to an applicant to show that it would be inappropriate to deny it
a franchise under Subsection (d)(3)a2 or 5, by virtue of the particular
circumstances surrounding the matter and the steps taken by the applicant
to cure all harms flowing therefrom and prevent their recurrence,
the lack of involvement of the applicant's principles, or the
remoteness of the matter from the operation of cable television systems.
(4)Â
Statement of applicant's financial qualifications. A statement
prepared by a certified public accountant regarding the applicant's
financial ability to complete the construction and operation of the
cable system proposed.
(5)Â
Description of prior experience. A description of the applicant's
prior experience in cable system ownership, construction, and operation,
and identification of communities in which the applicant or any of
its principals have, or have had, a cable franchise or license or
any interest therein, provided that, an applicant that holds a franchise
for the City and is seeking renewal of that franchise need only provide
this information for other communities where its franchise was scheduled
to expire in the two calendar years prior to and after its application
was submitted.
(6)Â
Identification of area to be served. Identification of the area of
the City to be served by the proposed cable system, including a description
of the proposed franchise area's boundaries.
(7)Â
Description of physical facilities. A detailed description of the
physical facilities proposed, including channel capacity, technical
design, performance characteristics, headend, and access facilities.
(8)Â
Description of construction of proposed system. Where applicable,
a description of the construction of the proposed system, including
an estimate of plant mileage and its location, the proposed construction
schedule, a description, where appropriate, of how services will be
converted from existing facilities to new facilities, and information
on the availability of space in conduits including, where appropriate,
an estimate of the cost of any necessary rearrangement of existing
facilities.
(9)Â
Proposed rate structure. The proposed rate structure, including projected
charges for each service tier, installation, converters, and other
equipment or services.
(10)Â
Demonstration of how future community needs and interests will
be met. A demonstration of the how the applicant will reasonably meet
the future cable-related needs and interests of the community, including
descriptions of how the applicant will meet the needs described in
any recent community needs assessment conducted by or for the City,
and how the applicant will provide adequate public, educational, and
governmental access channel capacity, facilities, or financial support
to meet the community's needs and interests. The City Manager
may, in coordination with neighboring communities, establish procedures
for conducting a joint needs assessment.
(11)Â
Pro forma financial projections. Pro forma financial projections
for the proposed franchise term, including a statement of projected
income, and a schedule of planned capital additions, with al significant
assumptions explained in notes or supporting schedules.
(12)Â
Identification of area of overbuild. If the applicant proposes
to provide cable service to an area already served by an existing
cable grantee, the identification of the area where the overbuild
would occur, the potential subscriber density in the area that would
encompass the overbuild, and the ability of the public rights-of-way
and other property that would be used by the applicant to accommodate
an additional system.
(13)Â
Other information. Any other information as may be reasonably
necessary to demonstrate compliance with the requirements of this
chapter.
(14)Â
Information requested by City. Information that the City may
reasonably request of the applicant that is relevant to the City's
consideration of the application.
(15)Â
Certification of accuracy. An affidavit or declaration of the
applicant or authorized officer certifying the truth and accuracy
of the information in the application, acknowledging the enforceability
of application commitments, and certifying that the application meets
all federal and state law requirements.
(e)Â
Application for modification of a franchise. An application for modification
of a franchise agreement shall include, at minimum, the following
information:
(1)Â
The specific modification requested;
(2)Â
The justification for the requested modification, including the impact
of the requested modification of Subscribers and others, and the financial
impact on the applicant if the modification is approved or disapproved,
demonstrated through inter alia submission of financial pro formas;
(3)Â
A statement whether the modification is sought pursuant to Section
625 of the Cable Act, 47 U.S.C. § 545, and if so, a demonstration
that the requested modification meets the standards set forth in 47
U.S.C. § 545;
(4)Â
Any other information that the applicant believes is necessary for
the City to make an informed determination on the application for
modification; and
(5)Â
An affidavit or declaration of the applicant or authorized officer
certifying the truth and accuracy of the information in the application,
and certifying that the application is consistent with all federal
and state law requirements.
(f)Â
Filing fees.
(1)Â
To be acceptable for filing, and application submitted after the
effective date of this chapter shall be accompanied by a filing fee
in the following amount to cover costs incidental to the awarding
or enforcement of the franchise, as appropriate:
(2)Â
The City may also elect to share the costs of reviewing an application
with other communities served by the system of which an existing or
proposed cable system in the City is a part. In that case, the filing
fees shown above shall not apply, and shall be replaced with combined
filing fees for all communities with whom the City is sharing expenses.
The combined filing fees shall be $7,000 for an initial grant or a
modification, and $14,000 for a renewal. The combined filing fees
may be prorated among the participating communities on the basis of
the number of residents in each community as of the most recent U.S.
Census, or allocated according to some other mutually agreeable method.
(g)Â
Public hearings. An applicant shall be notified of any public hearings
held in connection with the evaluation of its application and shall
be given an opportunity to be heard. In addition, prior to the issuance
of a franchise, the City shall provide for the holding of a public
hearing within the proposed franchise area, following reasonable notice
to the public, at which every applicant and its applications shall
be examined and the public and all interested parties afforded a reasonable
opportunity to be heard. Reasonable notice to the public shall include
causing notice of the time and place of such hearing to be published
in a newspaper of general circulation in the proposed franchise area
once a week for two consecutive weeks. The first publication shall
be not less than 14 days before the day of the hearing. Nothing herein
shall be deemed to prevent or limit communities in which the applicant
has requested grant or renewal of a franchise from holding joint public
hearings in a location reasonably accessible to residents of each
community which is the subject thereof.
[Ord. of 4-5-1999]
(a)Â
Insurance required.
(1)Â
A grantee shall maintain, and by its acceptance of a franchise specifically
agrees that it will maintain throughout the entire length of the franchise
period, such insurance as will protect the City and elected officials,
employees and agents from any claims that may arise directly or indirectly
or result from its acceptance of the franchise or its activities under
the franchise, whether such activities are preformed by the grantee,
or by anyone for whose acts the grantee may be liable, including,
but not limited to, the following:
a.Â
Worker's compensation, all risk, replacement cost basis, on
all of the grantee's assets;
b.Â
Property insurance, all risk, replacement cost basis, on all of the
grantee's assets;
c.Â
General liability insurance, in the following minimum amounts:
|
Type
|
Amount
|
|---|---|
|
Bodily injury or death
| |
|
Primary insurance
|
$1,000,000 per person; $1,000,000 per occurrence
|
|
Umbrella insurance
|
$1,000,000
|
|
Property damage
|
$1,000,000
|
(2)Â
The City may review these amounts no more than once a year and may
require reasonable adjustments to them consistent with the public
interest. The franchise agreement shall specify the procedures to
be followed in the event that the grantee objects to an increase in
a policy limit and the parties are unable to agree on a mutually acceptable
amount.
(b)Â
Qualifications of sureties. All insurance policies shall be with
sureties qualified to do business in the State of Maine, with an A
or better rating of insurance by Best's Key Rating Guide, Property/Casualty
Edition, and in a form approved by the City.
(c)Â
Evidence of insurance. A grantee shall keep on file with the City
current certificates of insurance. A grantee shall provide the City
with copies of all insurance policies in effect during the franchise
period upon the written request of the City.
(d)Â
Additional insureds; prior notice of policy cancellation. All general
liability insurance policies shall name the City, its inhabitants,
elected officials, officers, boards, commissions, commissioners, agents,
and employees as additional insureds and shall further provide that
any cancellation or reduction in coverage shall not be effective unless
30 days' prior written notice thereof has been given to the City.
A grantee shall not cancel any required insurance policy without submission
of proof that the grantee has obtained alternative insurance satisfactory
to the City which complies with this chapter.
(e)Â
Indemnification.
(1)Â
Indemnification for damages and equitable relief. A grantee shall,
at its sole cost and expense, indemnify, hold harmless, and defend
the City, its inhabitants, elected officials, officers, boards, commissions,
commissioners, agents, and employees, against any and all claims,
suits, causes of action, proceedings, and judgements for damages or
equitable relief arising out of the construction, maintenance, or
operation of its cable system; copyright infringements or a failure
by the grantee to secure consents from the owners, authorized distributors,
or grantees of programs to be delivered by the cable system; the conduct
of the grantee's business in the City; or in any way arising
out of the grantee's enjoyment or exercise of a franchise granted
hereunder, regardless of whether the act or omission complained of
is authorized, allowed, or prohibited by this chapter or a franchise
agreement.
(2)Â
Indemnification for Cable Act claims. A grantee shall, at its sole
cost and expense, fully indemnify, defend, and hold harmless the City,
and in its capacity as such, the officers, agents, and employees thereof,
from and against any and all claims, suits, actions, liability, and
judgements for damages or otherwise subject to Section 638 of the
Cable Act, 47 U.S.C. § 558, arising out of or alleged to
arise out of the installation, construction, operation, or maintenance
of its system, including, but not limited to, any claim against the
grantee for invasion of the right of privacy, defamation of any person,
firm or corporation, or the violation or infringement of any copyright,
trade mark, trade name, service mark, or patent, or of any other right
of any person, firm, or corporation. This indemnity does not apply
to programming carried on any channel set aside for public, educational,
or government use, or channels leased pursuant to 47 U.S.C. § 532,
unless the grantee was in any respect engaged in determining the editorial
content of the program, or adopts a policy of prescreening programming
for the purported purpose of banning indecent or obscene programming.
(3)Â
Attorney's fees. The indemnity provision includes, but is not
limited to, the City's reasonable attorney's fees incurred
in defending against any such claim, suit, action or proceeding.
(f)Â
No limit of liability. Neither the provisions of this chapter nor
any damage under any franchise issued hereunder.
(g)Â
No recourse. Without limiting such immunities as it may have under
applicable law, the City shall not be liable to the grantee for any
damages or loss that the grantee may suffer as the result of the City's
exercise of its authority pursuant to this chapter, a franchise agreement,
or other applicable law.
[Ord. of 4-5-1999]
(a)Â
Requirements of bond. Prior to any construction, rebuild or upgrade
of the cable system requiring work in the public rights-of-way other
than installation of aerial facilities and utility poles, a grantee
shall establish in the City's favor an irrevocable performance
bond in an amount specified in the franchise agreement or otherwise
determined as reasonable by municipal officers as necessary to ensure
the grantee's faithful performance of the construction, upgrade,
or other work. The amount of such performance bond shall not exceed
the lesser of 10% of the total cost of the work being done in the
public right-of-way other than installation or aerial facilities and
utility poles, or $50,000.
(b)Â
Recovery under performance bond. In the event that a grantee subject to such a performance bond fails to complete the cable system construction, upgrade, or other work in the public rights-of-way in a safe, timely (subject to the force majeure provision of Subsection 23-17(b)), and competent manner in accordance with the provisions of a franchise agreement, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee, or the cost of completing or repairing the system construction, upgrade, or other work in the public rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The City may also recover against the bond any amount recoverable against the security fund required under § 23-7 of this chapter, where such amount exceeds that available under the security fund.
(c)Â
Elimination or reduction of bond. Any performance bond shall remain
in place for one full year after completion to the satisfaction of
the City of the work in the public right-of-way.
(d)Â
New bond for new project. The City may subsequently require a new bond, for any subsequent construction, or other work in the public rights-of-way other than installation of aerial facilities and utility poles, whose cost exceeds an amount specified in a franchise agreement. In the event a grantee fails to complete the work secured by such a new performance bond in a safe, timely and competent manner, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee, or the cost of completing or repairing the system construction, upgrade, or other work in the public rights-of-way, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The City may also recover against the bond any amount recoverable against the security fund required under § 23-7 of this chapter, where such amount exceeds that available under the security fund. In any event, the total amount of the bond shall not exceed the lesser 10% of the cost of the work being done in the public right-of-way, or $50,000.
(e)Â
Issuance of bond; notice of cancellation required. Any performance
bond shall be issued by a surety qualified to do business in the State
of Maine, and having an A-1 or better rating of insurance in Best's
Key Rating Guide, Property/Casualty Edition; shall be subject to the
approval of the City; and shall contain the following endorsement:
"This bond may not be canceled, or allowed to lapse, until 60
days after receipt by the City, by certified mail, return receipt
requested, of a written notice from the issuer of the bond of intent
to cancel or not to renew."
(f)Â
Forfeiture. The total amount of any outstanding bond shall be forfeited
in favor of the City in the event that:
[Ord. of 4-5-1999]
(a)Â
Establishment of security fund:
(1)Â
A franchise agreement may provide that, prior to the franchise's
becoming effective, the grantee shall post with the City a cash security
deposit to be used as a security fund to ensure the grantee's
faithful performance of the compliance with all provisions of this
chapter, the franchise agreement, and other applicable laws, and compliance
with all orders, permits, and directions of the City or any agency
thereof having jurisdiction over the grantee's acts or defaults
under the franchise, and the payment by the grantee of any claims,
liens, fees, or taxes due the City which arise by reason of the construction,
operation, or maintenance of the system. The amount of any security
fund shall be specified in a franchise agreement.
(2)Â
In lieu of a cash security fund, a grantee may agree to file and
maintain with the City an irrevocable letter of credit with a local
bank in the amount specified in the preceding paragraph to serve the
same purpose as set forth therein. Said letter of credit shall remain
in effect for the full term of the franchise plus an additional six
months thereafter. The grantee and its surety shall be jointly and
severally liable under the terms of the letter of credit for the grantee's
failure to ensure its faithful performance of and compliance with
all provisions of this chapter, the franchise agreement, and other
applicable law, and compliance with all orders, permits, and directions
of the City, and the payment by the grantee of any claims, liens,
fees, or taxes due the City which arise by reason of the construction,
operation, or maintenance of the system. The letter of credit shall
provide for 30 days' prior written notice to the City of any
intention on the part of the grantee to cancel, fail to renew, or
otherwise materially alter its terms. Neither the filing of a letter
of credit with the City, nor the receipt of any damages recovered
by the City thereunder, shall be construed to excuse faithful performance
by the grantee or limit the liability of the grantee under the terms
of its franchise for damages, either to the full amount of the letter
of credit or otherwise.
(b)Â
Use of fund. If a grantee fails to make timely payment to the City
of any amount due as a result of a franchise, fails to make timely
payment to the City of any amounts due under a franchise agreement
or applicable law, fails to make timely payment to the City of any
taxed due, or fails to compensate the City for any damages, costs,
or expenses the City suffers or incurs by reason of any act or omission
of the grantee in connection with its franchise agreement, the City
may withdraw the amount thereof from the security fund. To invoke
the provisions of this section, the City shall give the grantee written
notice of the default in the grantee's performance. If within
30 calendar days following such written notice from the City to the
grantee, the grantee has not remedied the default to the satisfaction
of the City, the City may proceed to withdraw the amount in question
from the security fund, provided that, if by its nature the default
cannot be remedied within 30 days and the grantee has demonstrated
to the satisfaction of the City that it is making a continuing good
faith effort to remedy the default, the City shall not draw on the
security fund.
(c)Â
Notification. Within 10 business days of a withdrawal from the security
fund, the City shall mail, by certified mail, return receipt requested,
written notification of the amount, date, and purpose of such withdrawal
to the grantee.
(d)Â
Inadequate fund balance. If at the time of a withdrawal from the
security fund by the City, the amount of the fund is insufficient
to provide the total payment towards which the withdrawal is directed,
the balance of such payment shall continue as the obligation of the
grantee to the City until it is paid.
(e)Â
Replenishment. No later than 30 days after mailing of notification
to the grantee by certified mail, return receipt requested, of a withdrawal
under the security fund, the grantee shall deliver to the City for
deposit in the security fund an amount equal to the amount so withdrawn.
Failure to make timely delivery of such amount to the City shall constitute
a material violation of the franchise.
(f)Â
Disposition. Upon termination of the franchise under conditions other
than those stipulating forfeiture of the security fund, the balance
then remaining in the security fund shall be withdrawn by the City
and paid to the grantee within 90 days of such termination, provided
that there is then no outstanding default on the part of the grantee.
(g)Â
Grantor rights. The rights reserved to the City with respect to Sections 23-5, 23-6 and 23-7 hereof are in addition to all other rights of the City, whether reserved by this chapter or authorized by other law or franchise agreement, and no action, proceeding, or exercise of a right with respect to such section shall affect any other right the City may have.
[Ord. of 4-5-1999]
(a)Â
Available remedies. In addition to any other remedies available at
law or equity, the City may pursue the following remedies in the event
a grantee or any other person violates this chapter, its franchise
agreement, or applicable state or federal law:
(1)Â
Seek a determination from the Maine District Court that a provision
of this chapter has been violated. If such a violation is found to
exist by the court the minimum fine imposed shall be $50 and the maximum
fine imposed per violation shall be $250. Each day the violation is
found to exist shall constitute a separate violation for which the
above-indicated fine shall be assessed. Any violation found to exist
on the day of trial shall be found, at a minimum, to have existed
from the filing date of the complaint until the day of trial and the
fine assessed accordingly, unless grantee affirmatively proves that
said violation did not exist during any part of or all of the aforementioned
time period. If the grantee is found by the court to have been adjudicated
in violation of any provision of this chapter on more than one occasion
within two years, whether or not a violation of the same provision
of this chapter, the minimum fine per violation shall be $100 and
the maximum fine per violation shall be $500.
(2)Â
Seek legal or equitable relief from any court of competent jurisdiction.
(3)Â
Apply any remedy provided for in a franchise agreement, including
enforcing provisions, if any.
(b)Â
Revocation or termination of franchise:
(1)Â
City right to revoke franchise. The City shall have the right to
revoke the franchise for a grantee's substantial failure to construct
or operate the cable system as required by this chapter or a franchise
agreement, for defrauding or attempting to defraud the City or subscribers,
if the grantee is declared bankrupt, or for any other material violation
of this chapter or material breach of a franchise agreement. To invoke
the provisions of the article, the City shall give the grantee written
notice of the default in its performance. If within 30 calendar days
following such written notice from the City to the grantee, the grantee
has not taken corrective action or corrective action is not being
actively and expeditiously pursued to the satisfaction of the City,
the City may give written notice to the grantee of its intent to revoke
the franchise, stating its reasons; provided that no opportunity to
cure shall be provided where the grantee has defrauded or attempted
to defraud the City or its subscribers, or in the event the grantee
is declared bankrupt. In the case of a fraud or attempted fraud, the
franchise may be revoked after the hearing required under subsection
(b)(2); revocation for bankruptcy shall be governed by subsection
(b)(3).
(2)Â
Public hearing. Prior to revoking a franchise, the City shall hold
a public hearing, on 30 calendar days' notice, at which time
the grantee and the public shall be given an opportunity to be heard.
Following the public hearing, the City may determine to revoke the
franchise based on the information presented at the hearing, and other
information of record. If the City determines to revoke a franchise,
it shall issue a written decision setting forth the reasons for its
decision. A copy of such decision shall be transmitted to the grantee.
(3)Â
Revocation after assignment for benefit of creditors or appointment
of receiver or trustee. To the extent provided by law, and franchise
may, at the option of the City following a public hearing, be revoked
120 calendar days after an assignment for the benefit of creditors
or the appointment of a receiver or trustee to take over the business
of the grantee, whether in a receivership, reorganization, bankruptcy
assignment for the benefit of creditors, or other action or proceeding,
unless within that 120-day period:
a.Â
Such assignment, receivership, or trusteeship has been vacated; or
b.Â
Such assignee, receiver, or trustee has fully complied with the terms and conditions of this chapter and a franchise agreement and has executed an agreement, approved by a court of competent jurisdiction, assuming and agreeing to be bound by the terms and conditions of this chapter and a franchise agreement, and such other conditions as may be established or as are required under § 23-13 of this chapter.
c.Â
In the event of foreclosure or other judicial sale of any of the facilities, equipment, or property of a grantee, the City may revoke the franchise, following a public hearing before the City, by serving notice on the grantee and the successful bidder at the sale, in which event the franchise and all rights and privileges of the franchise will be revoked and will terminate 30 calendar days after serving such notice, unless the City has approved the transfer of the franchise to the successful bidder, and the successful bidder has covenanted and agreed with the City to assume and be bound by the terms and conditions of the franchise agreement and this chapter, and such other conditions as may be established or as are required pursuant to § 23-9 of this chapter.
(4)Â
Procedures on revocation, abandonment, and termination. If the City
revokes a franchise, or if for any other reason a grantee abandons,
terminates, or fails to operate or maintain service to its subscribers,
the following procedures and rights are effective:
a.Â
The City may require the former grantee to remove its facilities
and equipment located in the public rights-of-way and on public premises
at the former grantee's expense. If the former grantee fails
to do so within a reasonable period of time, the City may have the
removal done at the former grantee's and/or surety's expense.
The foregoing provisions shall not apply if, within three months after
expiration, termination or revocation of the franchise, the grantee
obtains certification from the FCC to operate an open video system
or any other federal or state certification to provide telecommunications
services.
b.Â
In the event of revocation, the City, by order, may acquire ownership
of the cable system at not less than fair market value, determined
on the basis of the cable system valued as a going concern, but with
no value allocated to the franchise itself, as specified at 47 U.S.C.
§ 547(a)(1).
c.Â
If a cable system is abandoned by a grantee or the franchise otherwise
terminates, the ownership of all portions of the cable system in the
public rights-of-way shall revert to the City and the City may sell,
assign or transfer all or part of the assets of the system. If a grantee
abandons a portion of its system, the ownership of the abandoned portions
of the cable system in the public rights-of-way shall revert to the
City and the City may sell, assign or transfer the abandoned facilities.
A cable system or portion thereof shall be deemed "abandoned" if a
grantee (i) gives the City written notice of its decision to abandon
the system or the portion in question; or (ii) fails to provide cable
service to subscribers served by the system or the relevant portion
thereof on a continuous basis for a period of 30 days or more.
(5)Â
Forfeiture for failure to comply with franchise obligation. Notwithstanding any other provision of this chapter other than the force majeure clause of Subsection 23-17(b), where the City has issued a franchise specifically conditioned in the franchise agreement on the completion of construction, system upgrade, or other specific obligation by a specified date, failure of the grantee to complete such construction or upgrade, or to comply with such other specific obligations as required, will result in the automatic forfeiture of the franchise without further action by the City where it is so provided in the franchise agreement, unless the City, at its discretion and for good cause demonstrated by the grantee, grants an extension of time.
(c)Â
Obligation of compliance. The City's exercise of one remedy
or a grantee's payment of liquidated damages or penalties shall
not relieve a grantee of its obligations to comply with its franchise.
In addition, the City may exercise any rights it has at law or equity.
(d)Â
Relation to insurance and indemnity requirements. Recovery by the City of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise does not limit a grantee's duty to indemnify the City in any way; nor shall such recovery relieve a grantee of its obligations under franchise, limit the amounts owed to the City, or in any respect prevent the City from exercising any other right or remedy it may have; provided that this section shall not be interpreted as permitting the City to recover twice for the same damage. In addition, any civil fine imposed pursuant to Subsection 23-8(a)(1) or other applicable law shall not be treated as a recovery for purposes of this section.
[Ord. of 4-5-1999]
(a)Â
City approved required. No transfer shall occur without prior approval
of the City; provided, however, that no such approval shall be required
for transfers resulting from the transfer of ownership interests between
existing holders of ownership interests in a grantee, where such holders
were also holders of ownership interests in the grantee at the time
of the original grant of the franchise to the grantee.
(b)Â
Application. An application for a transfer shall provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the information required under federal law and in Subsections 23-4(d)(1) — (4), 23-4(d)(9) — (11), 23-4(d)(13), and 23-4(d)(15) of this chapter shall be provided with respect to the proposed transferee.
(c)Â
Determination by City. In making a determination as to whether to
grant, deny, or grant subject to conditions an application for a transfer
of a franchise, the City shall not unreasonably withhold its consent,
but shall first consider (i) the legal, financial, and technical qualifications
of the transferee to operate the system; (ii) whether the incumbent
cable operator is in compliance with its franchise agreement and this
chapter and, if not, the proposed transferee's commitment to
cure such noncompliance; (iii) whether the transferee owns or controls
any other cable system in the City, or whether operation by the transferee
may eliminate or reduce competition in the delivery of cable service
in the City; and (iv) whether operation by the transferee or approval
of the transfer would adversely affect subscribers, the City's
interest under this chapter, the franchise agreement, or other applicable
law, or make it less likely that the future cable-related needs and
interests of the community would be satisfied at a reasonable cost.
The City reserves the right to review the purchase price of any transfer
or assignment of a cable system. Any negotiated sale value which the
City deems unreasonable will not be considered in the rate base for
any subsequent request for rate increases, if permitted by applicable
law.
(d)Â
Transferee's agreement. No application for a transfer of a franchise
shall be granted unless the transferee agrees in writing that it will
abide by and accept all terms of this chapter and the franchise agreement,
and that it will assume the obligations, liabilities, and responsibility
for all acts and omissions, known and unknown, of the previous grantee
under this chapter and the franchise agreement for all purposes, including
renewal, unless the City, in its sole discretion, expressly waives
this requirement in whole or in part.
(e)Â
Approval does not constitute waiver. Approval by the City of a transfer
of a franchise shall not constitute a waiver or release of any of
the rights of the City under this chapter or a franchise agreement,
whether arising before or after the date of the transfer.
(f)Â
Processing fee. As a condition of considering a transfer, the City
may impose a fee on the transferee to cover its estimated out-of-pocket
expenses in considering the application for transfer of a franchise.
Any amount collected in excess of the estimated amount shall be returned
to the transferee.
[Ord. of 4-5-1999]
(a)Â
Finding. The City finds that the public rights-of-way of the City,
county, and state to be used by a grantee for the operation of a cable
system are valuable public property acquired and maintained by the
county, state, and City at great expense to the taxpayers. The City
further finds that the grant of a franchise to use public rights-of-way
is a valuable property right without which a grantee would be required
to invest substantial capital.
(b)Â
Payment to City. As compensation for use of the public rights-of-way
and in light of the scope of any franchise, in addition to providing
channels, facilities and other support for public, educational and
governmental use of the cable system, a grantee shall pay the City
a franchise fee. The amount of the fee shall be specified in a franchise
agreement. The franchise fee shall be paid annually, provided that
provisions for more frequent payments may be specified in a franchise
agreement. At least once a year the grantee shall provide the City
a report setting forth the total of gross revenues for the year or
other period in question and identifying the amount of revenues attributable
to each category of gross revenues received by the grantee, including
non-subscribers receiving each category of cable service offered by
the grantee.
(1)Â
City right to request audit. The City shall have the right to
retain an independent auditor to (i) audit the records of a grantee
to verify the computation of amounts payable under this chapter or
a franchise agreement; and (ii) recompute any amounts determined to
be payable under this chapter or a franchise agreement, whether the
records are held by the grantee, an affiliate, or any other entity
that collects or receives funds related to the grantee's operation
in the City, including, by way of illustration and not limitation,
any entity that sells advertising on the grantee's behalf. The
grantee shall be responsible for all costs associated with any such
audit, including the auditor's fees, as a cost incidental to
the enforcement of the franchise, and shall have no control over the
identity or selection of the auditor. The City shall have sole discretion
in selection the auditor and shall not be responsible for any costs
associated with the audit. The City shall have the right to review
the auditor's report and methodology including the right to obtain
an explanation of all of the auditor's assumptions and calculations,
and the right to challenge and request changes to any such assumptions
and calculations. The City shall not, however, be permitted to obtain
copies of documents received by the auditor, with the exception of
documents voluntarily provided by the grantee to the City, or subject
to copying by the City pursuant to Subsection 23-15(1). The grantee
shall be responsible for providing all such records to the auditor,
without regard to by whom they are held. The records shall be maintained
for at least six years. Any additional amounts due to the City as
a result of an audit shall be paid within 30 days following written
notice to the grantee by the City of the underpayment, which notice
shall include a copy of the audit report. The City may exercise its
audit right no more frequently than once per year, and only upon written
notice to the grantee.
(2)Â
Maintenance of records. A grantee shall maintain its fiscal
and financial records and have all relevant fiscal and financial records
maintained by others on its behalf in such a manner as to enable the
City to (i) determine the cost of assets of the grantee which are
used in providing services within the City for purposes of assessing
any personal property or other taxes and for purposes of verifying
any filings that may be made in connection with any cost of service
proceedings, and (ii) to determine gross revenues. For purposes of
assessing state and local taxes, the cost of assets shall be determined
in accordance with any applicable provision of state law. For purposes
of any cost of service proceedings, and for purposes of assessing
state and local taxes if state law does not provide a method, the
cost of assets shall be determined in accordance with FCC rules pertaining
to cost of service proceedings.
[Ord. of 4-5-1999]
(a)Â
System construction schedule. Every franchise agreement shall specify
the construction schedule that will apply to any required construction,
upgrade, or rebuild of the cable system.
(b)Â
Construction standards:
(1)Â
Construction shall be in accordance with all applicable laws.
The construction, operation, maintenance, and repair of a cable system
shall be in accordance with all applicable sections of the Occupational
Safety and Health Act of 1970, as amended, the National Electrical
Safety Code, the National Electric Code, other applicable federal,
state, or local laws and regulations that may apply to the operation,
construction, maintenance, or repair of a cable system, including,
without limitation, local zoning and construction codes, and laws
and accepted industry practices, all as hereafter may be amended or
adopted.
(2)Â
Wires to cause minimum inconvenience. All wires, cable lines,
and other transmission lines, equipment, and structures shall be installed
and located to cause minimum interference with the rights and convenience
of property owners.
(3)Â
Installation of equipment to be of permanent nature. All installation
of electronic equipment shall be of a permanent nature, using durable
components.
(4)Â
Antennae. Without limiting the foregoing, to the extent applicable,
antennae and their supporting structures (towers) shall be painted,
lighted, erected, and maintained in accordance with all applicable
rules and regulations of the Federal Aviation Administration and all
other applicable state or local laws, codes, and regulations, all
as hereafter may be amended or adopted.
(5)Â
Good engineering practices. Without limiting the foregoing,
all of a grantee's plant and equipment, including, but not limited
to, the antennae site, headend and distribution system, towers, house
connections, structures, poles, wires, cable, coaxial cable, fiber
optic cable, fixtures, and apparatuses shall be installed, located,
erected, constructed, reconstructed, replaced, removed, repaired,
maintained, and operated in accordance with good engineering practices,
performed by experienced and properly trained maintenance and construction
personnel so as not to endanger or interfere with improvements the
City shall deem appropriate to make or to interfere in any manner
with the public rights-of-way or legal rights of any property owner
or to unnecessarily hinder or obstruct pedestrian or vehicular traffic.
(6)Â
Safety practices. All safety practices required by law shall
be used during construction, maintenance, and repair of a cable system.
A grantee shall at all times employ ordinary care and shall install
and maintain in use commonly accepted methods and devices preventing
failures and accidents that are likely to cause damage, injury, or
nuisance to the public.
(7)Â
No interference with other utilities. A grantee shall not place
facilities, equipment, or fixtures where they will interfere with
any gas, electric, telephone, water, sewer, or other utility facilities,
or obstruct or hinder in any manner the various utilities serving
the residents of the City of their use of any public rights-of-way.
(8)Â
Repair of rights-of-way. Any and all public rights-of-way, public
property, or private property that is disturbed or damaged during
the construction, repair, replacement, relocation, operation, maintenance,
or construction of a system otherwise, including installation, repair,
maintenance or replacement of a grantee's equipment shall be
promptly repaired by the grantee.
(9)Â
Removal of system due to conditions in rights-of-way. A grantee
shall, by a time specified by the City, protect, support, temporarily
disconnect, relocate, or remove any of its property when required
by the City by reason of traffic conditions; public safety; public
rights-of-way construction; public right-of-way maintenance or repair
(including resurfacing or widening); change of public right-of-way
grade; construction, installation or repair of sewers, drains, water
pipes, power lines, signal lines, tracks, or any other type of government-owned
communications system, public work or improvement or any government-owned
utility; public right-of-way vacation; or for any other purpose where
the convenience of the City would be served thereby; provided, however,
that the grantee shall, in all such cases, have the privilege of abandoning
any property in place.
(10)Â
Removal by City due to emergency. In the event of an emergency,
or where a cable system creates or is contributing to an imminent
danger to health, safety, or property, the City may remove, relay,
or relocate that cable system without prior notice.
(11)Â
Raising or lowering wires to permit moving of buildings. A grantee
shall, on the request of any person holding a building moving permit
issued by the City, temporarily raise or lower its wires to permit
the moving of buildings. The expense of such temporary removal or
raising or lowering of wires shall be paid by the person requesting
same, and the grantee shall have the authority to require such payment
in advance, except in the case where the requesting person is the
City, in which case no such payment shall be required. The grantee
shall be given reasonable advance notice to arrange for such temporary
wire changes, as provided in 35-A M.R.S.A. § 2516.
(12)Â
Authority to trim trees. A grantee shall have the authority
to trim trees that overhang a public right-of-way of the City so as
to prevent the branches of such trees from coming in contact with
the wires and cables of the grantee. At the option of the City, such
trimming may be done by it or under the supervision, direction, and
expense of the grantee.
(13)Â
Use of existing utility facilities. A grantee shall use, with
the owner's permission, existing underground conduits or overhead
utility facilities whenever feasible and may not erect poles or support
equipment in public rights-of-way without the express permission of
the City. Copies of agreements for use of conduits or other facilities
shall be filed with the City as required by a franchise agreement
or upon City request.
(14)Â
Undergrounding of cable. In public rights-of-way or other places
where electrical and telephone utility wiring is located underground,
either at the time of initial construction of a cable system or at
any time thereafter, a grantee's cable system shall also be located
underground. Between a public right-of-way and a subscriber's
residence, a grantee's cable must be located underground if both
electrical and telephone utility wiring are located underground. If
either electric or telephone utility wiring is aerial, a grantee may
install aerial cable except where a property owner or resident requests
underground installation and agrees to bear the additional cost of
such installation over and above the cost of aerial installation.
(15)Â
City use of grantee's poles. The City shall have the right
to install and maintain free of charge upon the poles owned by a grantee
any wire and pole fixtures that do not unreasonably interfere with
the cable system operations of the grantee.
(16)Â
City approval of construction. Prior to erection of any owners'
poles, or conduits or the construction, upgrade, or rebuild of a cable
system authorized under this chapter, a grantee shall first submit
to the City and other designated parties for approval a concise description
of the cable system proposed to be erected or installed, including
engineering drawings, if required, together with a map and plans indicating
the proposed location of all such facilities. No erection or installation
of any tower, pole, underground conduit, or fixture or any rebuilding
or upgrading of a cable system shall be commenced by any person until
the grantee has obtained all building permits, street operating permits
or other approvals required by the City under any ordinance, regulation
or procedure generally applicable to such activities.
(17)Â
Contractors and subcontractors. Any contractor or subcontractor
used for work or construction, installation, operation, maintenance,
or repair of system equipment must be properly licensed under laws
of the state and all applicable local ordinances. The grantee must
ensure that contractors, subcontractors and all applicable local ordinances.
The grantee must ensure that contractors, subcontractors and all employees
who will perform work for it are trained and experienced. Each contractor
and subcontractor must perform work in compliance with all applicable
provision of law and a franchise agreement, and the grantee shall
implement a quality control program to ensure that the work is so
performed.
(c)Â
Publicizing proposed construction work. A grantee shall publicize
proposed construction work at least one week prior to commencement
of that work by causing written notice of such construction work to
be delivered to the City and by notifying those persons most likely
to be affected by the work in at least two of the following ways:
by telephone, in person, by mail, by distribution of flyers to residences,
by publication in local newspapers, or in any other manner reasonably
calculated to provide adequate notice.
(d)Â
Continuity of service:
(1)Â
Subscriber right. It is the right of all subscribers in a grantee's
franchise area to receive all services that a grantee is then providing
under the terms of a valid franchise as long as their financial and
other obligations to the grantee are satisfies; provided, however,
that to the extent a grantee's agreements with its programming
providers prohibit the grantee from providing certain cable services
to nonresidential subscribers, the grantee may exclude such services
from its offerings to nonresidential subscribers.
(2)Â
Assurance of continuous uninterrupted service. A grantee shall
ensure that all subscribers receive continuous uninterrupted service.
To this end, a grantee shall: (a) in the event of a sale or transfer
of its franchise, cooperate with the City to assure an orderly transition
from it to another grantee and take all steps necessary to maintain
service to subscribers until the sale or transfer has been completed;
(b) not abandon service to the entire City without having given 12
months' prior notice to the City; and (c) not abandon service
to any portion of the City (excepting termination of service to individual
subscribers as otherwise permitted) without having given six months'
prior written notice to the City. Following such notice, the grantee
shall continue to be obligated to comply with the terms and conditions
of its franchise agreement and applicable laws and regulations and
shall cooperate with the City to assure an orderly transition from
it to another grantee.
(3)Â
Abandonment of system. If a grantee abandons its system during
the franchise term, or fails to operate its system in accordance with
this section during any transition period, the City, at its option,
may operate the system, designate another entity to operate the system
temporarily until the grantee restores service under conditions acceptable
to the City or until the franchise is revoked and a new grantee selected
by the City is providing service, or obtain an injunction requiring
the grantee to continue operations. If the City is required to operate
or designate another entity to operate the cable system, the grantee
shall reimburse the City or its designee for all reasonable costs
and damages incurred that are in excess of the revenues from the cable
system. In addition, any abandonment of a system shall be subject
to all of the provisions of 30-A M.R.S.A. § 3008(3)(B).
(4)Â
Injunctive relief. The City shall be entitled to injunctive
relief under the preceding paragraph if:
a.Â
The grantee fails to provide cable service in accordance with its franchise over a substantial portion of the franchise area for 96 consecutive hours, unless the City authorized a longer interruption of service or as permitted pursuant to the force majeure clause of Subsection 23-17(b); or
b.Â
The grantee, for any period, willfully and without cause refuses
to provide cable service in accordance with its franchise over a substantial
portion of the franchise area.
[Ord. of 4-5-1999]
(a)Â
In addition to satisfying such requirements as may be established
through the application process, every cable system shall be subject
to the following conditions, except as prohibited by federal law:
(1)Â
Provision of service. Each franchise agreement shall contain
a line extension policy that shall govern a grantee's obligation
to extend service. Unless otherwise specified in a franchise agreement,
after cable service has been established by activating trunk distribution
cable for an area specified in a franchise agreement, a grantee shall
provide cable service to any household requesting cable service within
that area, including each multiple dwelling unit in that area, except
for multiple dwelling units to which it cannot legally obtain access.
In providing services to multiple dwelling units, a grantee shall
comply with all applicable provisions of 14 M.R.S.A. § 6041.
(2)Â
Full video service to municipal buildings; facilities and equipment.
A franchise agreement may require a grantee to install, at no charge,
at least one service outlet at all municipal buildings within the
franchise area that can be reached by a standard drop, and may provide
that the grantee shall charge only its time and material costs for
any additional service outlets to such facilities. A franchise agreement
may also require a grantee to provide basic cable service and the
lowest tier of cable programming services to such buildings free of
charge. Finally, a franchise agreement may provide that such service
outlets shall be capable of providing the full range of non-cable
electronic data and telecommunication services provided by a grantee,
and may require other facilities and equipment and channel capacity
in accordance with the Cable Act.
(3)Â
Technical standards:
a.Â
FFC standards. Any cable system within the City shall meet or
exceed the technical standards set forth in 47 CFR 76.601 and other
applicable technical standards, including any such standards as hereafter
may be amended or adopted by the City in a manner consistent with
federal law.
b.Â
Facilities shall not interfere with others' signals or
facilities. A grantee shall not design, install, or operate its facilities
in a manner that will interfere with the signals of any broadcast
station, the facilities of any public utility, the cable system of
another grantee, or individual or master antennae used for receiving
television or other broadcast signals.
(4)Â
Proof of performance tests. At the times specified in a franchise
agreement or as required by FCC rules, a grantee shall perform proof
of performance tests, and such other tests as may be specified in
a franchise agreement, designed to demonstrate compliance with this
section, the franchise agreement, and FCC requirements. The grantee
shall provide the results of proof of performance tests promptly to
the City, upon the City's request. The City shall have the right
to inspect the cable system during and after its construction to ensure
compliance with this section, a franchise agreement, and applicable
provisions of local, state and federal law, and may require the grantee
to perform additional tests based on the City's investigation
of cable system performance or on subscriber complaints.
[Ord. of 4-5-1999]
(a)Â
Telephone and office availability:
(1)Â
Office; hours of operation; telephone. Each grantee shall maintain
an office at a location reasonably convenient to subscribers that
shall be open at least 50 hours each week, including, during the hours
of 8:30 a.m. to 5:00 p.m. Monday through Friday and 8:30 a.m. to 12:00
p.m. Saturday to allow subscribers to request service and conduct
other business. Each grantee shall ensure that its office shall meet
all applicable federal and state laws and regulations. Each grantee
shall perform service calls, installations, and disconnects during
at least the hours for which its office is open for business, provided
that a grantee shall respond to outages 24 hours a day, seven days
a week. Each grantee shall establish a publicly listed local toll-free
telephone number, and shall either ensure that its telephone service
has TTY and TDD capabilities, or contract with a third party to provide
grantee with such services. The phone must be answered by customer
service representatives at least during the hours for which the grantee's
office is open for business, for the purpose of receiving requests
for service, inquires, and complaints from subscribers; after those
hours a grantee shall arrange for the phone to be answered so that
customers can register complaints and report service problems on a
twenty-four-hour per day, seven days a week basis, and so that the
grantee can respond to service outages as required herein.
(2)Â
Telephone answering time. The telephone answering time shall not exceed 30 seconds or four rings, and the time to transfer the call to a customer service representative (including hold time) shall not exceed an additional 30 seconds. This standard shall be met 90% of the time, measured quarterly. When the business office is closed, an answering machine or service capable of receiving and recording service complaints and inquiries shall be employed. The after-hours answering service shall comply with the some telephone answer time standard set forth in the subsection (1). If required by its franchise agreement, a grantee shall supply statistical data to verify it has met the standards set forth herein.
(3)Â
Staff. A grantee must hire sufficient staff so that it can adequately
respond to customer inquiries, complaints, and requests for service
in its office, over the phone, and at the subscriber's residence.
(b)Â
Scheduling work:
(1)Â
Appointments. All appointments for service, installation, or
disconnection shall be specified by date. Each grantee shall offer
a choice of morning, afternoon, or all-day appointment opportunities.
If at any time an installer or technician believes it impossible to
make a scheduled appointment time, an attempt to contact the customer
will be made prior to the time of appointment and the appointment
rescheduled.
(2)Â
Missed appointments. Subscribers who experience a missed installation
appointment due to the fault of a grantee shall receive installation
free of charge. If the installation was to have been provided free
of charge, or for other appointments, the subscriber shall receive
three months of the most widely subscribed to service tier free of
charge, or a credit of $20, whichever is greater.
(3)Â
Mobility-limited customers. With regard to mobility-limited
customers, upon subscriber request, each grantee shall arrange for
pickup and/or replacement of converters or other grantee equipment
at the subscriber's address or by a satisfactory equivalent (such
as the provision of a postage-prepaid mailer).
(4)Â
Acknowledgment of and response to customer requests. Requests
for service, repair, and maintenance must be acknowledged by a grantee
within 24 hours, or prior to the end of the next business day, whichever
is earlier. A grantee shall respond to all other inquires (except
billing inquiries) within five business days of the inquiry or complaint.
A grantee shall acknowledge receipt of billing inquiries within five
days and provide a detailed response within 30 days.
(5)Â
Completion of work. Repairs and maintenance for service interruptions
and other repairs not requiring in-unit work must be initiated within
24 hours and must be completed within 62 hours. All other requests
for service must be completed within three days from the date of the
initial request, except installation requests, provided that a grantee
shall complete the work in the shortest time possible where, for reasons
beyond the grantee's control, the work could not be completed
in those time periods even with the exercise of all due diligence;
the failure of a grantee to hire sufficient stall or to properly train
its staff shall not justify a grantee's failure to comply with
this provision. Except as federal law requires, no charge shall be
made to the subscriber for this service, except for the cost of repairs
to the grantee's equipment or facility was damaged by a subscriber.
(6)Â
Work standards. The standards of subsections (b)(4) and (b)(5)
shall be met 95% of the time, measured on a quarterly basis.
(c)Â
Notice to subscribers:
(1)Â
Provisions of information to subscribers. A grantee shall provide
each subscriber at the time cable service is installed, and at least
annually thereafter, written instructions for placing a service call,
filing a complaint, or requesting an adjustment. Each grantee shall
also provide a notice informing subscribers of how to communicate
their views and complaints to the cable company, the proper municipal
official and the State Attorney General; stating the responsibility
of the State Attorney General to receive consumer complaints concerning
matters other than channel selection and rates; and stating the policy
regarding and method by which subscribers may request rebates or pro
rata credits as provided in this chapter or applicable federal or
state law or regulation. In addition, a grantee shall provide each
subscriber to its services a schedule of rates and charges, a copy
of the service contract, delinquent subscriber disconnect and reconnect
procedures, and description of any other of the grantee's policies
in connection with its subscribers. Copies of these notices shall
be provided to the City. A grantee shall provide the City and each
subscriber at least 30 days' advance notice of any significant
changes in any of the information required by this section.
(2)Â
Disclosure of price terms. All grantee promotional materials,
announcements, and advertising of residential cable services to subscribers
and the general public, where price information is listed in any manner,
shall clearly and accurately disclose price terms. In the case of
pay-per-view or pay-per-event programming, all promotional materials
must clearly and accurately disclose price terms and in that case
of telephone orders, a grantee shall take appropriate steps to ensure
that the customer service representatives clearly and accurately disclose
price terms to potential customers in advance of taking the order.
(3)Â
Public file. Each grantee shall maintain a public file containing
all notices provided to subscribers under these customer service standards,
as well as all written promotional offers made to subscribers by the
grantee. Material in the file shall be retained for at least one year
after the later of the date of mailing or public announcement of the
information contained in a notice.
(4)Â
Interruptions of service. A grantee may intentionally interrupt
service on the cable system only for good cause and for the shortest
time possible and, except in emergency situations, only after a minimum
of 48 hours' prior notice to subscribers and the City of the
anticipated service interruption; provided, however, that planned
maintenance that does not required more than two hours' interruption
of service and that occurs between the hours of 12:00 a.m. and 6:00
a.m. shall not require such notice to subscribers, and notice to the
City may be given no less than 24 hours prior to the anticipated service
interruption.
(d)Â
Billing:
(1)Â
Proration of first billing statement. A grantee's first
billing statement after a new installation or service change shall
be prorated as appropriate and shall reflect any security deposit.
(2)Â
Itemization. A grantee's billing statement must itemize
each category of service and equipment provided to the subscriber
and state clearly the charge therefor.
(3)Â
Payment due date. A grantee's billing statement must show
a specific payment due date not earlier than 10 days after the date
the statement is mailed. Any balance not received within 30 days after
the due date may be assessed a late fee not exceeding 1Â 1/2 of
1% of the amount due. The late fee shall appear on the following month's
billing statement.
(4)Â
In person payments. A grantee must notify the subscriber that
he or she can remit payment in person at the grantee's office
in the greater Bangor area and inform the subscriber of the address
of that office.
(5)Â
No late fees for failure by grantee. Subscribers shall not be
charged a late fee or otherwise penalized for any failure by a grantee,
including failure to timely or correctly bill the subscriber, or failure
to properly credit the subscriber for a payment timely made.
(6)Â
Credit for lack or impairment of service. The account of any
subscriber shall be credited a prorated share of the monthly charge
for the service if said subscriber is without service or if service
is substantially impaired for any reason for a period exceeding six
hours during any twenty-four-hour period, except where it can be documented
that a subscriber seeks a refund for an outage or impairment which
that subscriber caused, or in the case of a planned outage occurring
between the hours of 12:00 midnight and 6:00 a.m. of which the subscriber
had prior notice.
(e)Â
Disconnection/downgrades:
(1)Â
Subscriber termination. A subscriber may terminate service at
any time.
(2)Â
Prompt disconnection or downgrade on request; charges. A grantee
shall promptly disconnect or downgrade any subscriber who so requests
from the grantee's cable system, unless the subscriber unreasonably
hinders access by the grantee to equipment of the grantee or the subscriber's
premise to which the grantee must have access to complete the requested
disconnection. No period of notice prior to voluntary termination
or downgrade of service may be required of subscribers by any grantee.
No charge may be imposed for any voluntary disconnection, and downgrade
charges must comply with the requirements of federal law. So long
as the subscriber returns equipment necessary to receive a service
within five business days of the disconnection, no charge may be imposed
by any grantee for any cable services delivered after the date of
the disconnect request.
(3)Â
Subscriber return of equipment. A subscriber may be asked, but
not required, to disconnect a grantee's equipment and return
it to the business office; provided that if a subscriber requests
that a grantee pick up the equipment, the subscriber shall provide
reasonable access to the subscriber's premises to allow the grantee
to retrieve the equipment.
(4)Â
Refund of security deposit. Any security deposit and/or other
funds due the subscriber shall be refunded on disconnected accounts
after the converter has been recovered by the grantee. The refund
process shall take a maximum of 30 days or the next billing cycle
from the date disconnection was requested to the date the customer
receives the refund.
(5)Â
Disconnection for failure to pay fee. If a subscriber fails to pay a monthly subscriber or other fee or charge, a grantee may disconnect the subscriber's service outlet; however, such disconnection shall not be effected until at least 45 days after the due date of the monthly subscriber fee or other charge and, after 10 days' advance written notice of intent to disconnect is given to the subscriber in question. If the subscriber pays all amounts due, including late charges before the date scheduled for disconnection, the grantee shall not disconnect service. Subject to Subsection 23-13(e)(2), after disconnection, upon payment by the subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the grantee shall promptly reinstate service.
(6)Â
Disconnection for damage to system or equipment. A grantee may
immediately disconnect a subscriber if the subscriber is damaging
or destroying the grantee's cable system or equipment. After
disconnection, the grantee shall restore service after the subscriber
provides adequate assurance that it has ceased the practices that
led to disconnection, and paid all proper fees and charges, including
reconnect fees, a reasonable security deposit, and amounts owed the
grantee for damage to its cable system or equipment.
(7)Â
Disconnection for signal leakage. A grantee may also disconnect
a subscriber that causes signal leakage in excess of federal limits.
It may do so after five days' written notice to the subscriber,
if the subscriber fails to take steps to correct the problem. It may
also do so without notice in the event of a danger to the public safety,
provided that the grantee shall immediately notify the subscriber
of the problem and, once the problem is corrected, reconnect the subscriber
without charge.
(8)Â
Removal of grantee property. Except as federal law may otherwise
provide, if a subscriber the opportunity to acquire any wiring located
on the premises that is the property of grantee at replacement cost.
If the subscriber declines to purchase the wiring, the grantee must
remove its property from the subscriber's premises within seven
days. If a grantee fails to remove the wiring in that period, the
grantee shall make no further attempt to remove the wiring or restrict
its use.
(f)Â
Changes in service. In addition to rights reserved by the City, subscribers
shall have rights with respect to alterations in service. The grantee
may not alter the service being provided to a class of subscribers
(including by retiering, restructuring or otherwise) without the express
permission of each subscriber, unless it complies with this section.
At the time the grantee alters the service it provides to a class
of subscribers, it must provide each subscriber 30 days' notice,
explain the substance and full effect of the alteration, and provide
the subscriber the right within the thirty-day period following notice
to opt to receive any combination of services offered by grantee.
Except as federal law otherwise provides, subscribers may not be required
to pay any charge (other than properly noticed rates), including an
upgrade or downgrade charge, in order to receive the services selected.
No charge may be made for any service or product for which there is
a separate charge that a subscriber has not affirmatively indicated
it wishes to receive. Payment of the regular monthly bill does not
in and of itself constitute such an affirmative indication.
(g)Â
Deposits. A grantee may require a reasonable, non-discriminatory
deposit on equipment provided to subscribers. Deposits shall be placed
in an interest-bearing account, and the grantee shall return the deposit,
plus interest earned to the date repayment is made to the subscriber.
Interest will be calculated at the prevailing commercial savings rate
on all late payments.
(h)Â
Recording subscriber complaints. A grantee shall maintain a record
of subscriber complaints in accordance with 30-A M.R.S.A. § 3010(4):
(1)Â
Every franchisee shall keep a record or log of all written complaints
received regarding quality of service, equipment malfunctions, billing
procedure, employee attitude and similar matters. These records shall
be maintained for a period of two years.
(2)Â
The record shall contain the following information for each
complaint received:
a.Â
Date, time and nature of the complaint;
b.Â
Name, address and telephone number of the person complaining;
c.Â
Investigation of the complaint;
d.Â
Manner and time of resolution of the complaint;
e.Â
If the complaint regards equipment malfunction or the quality
of reception, a report indicating corrective steps taken, with the
nature of the problem stated; and
f.Â
Consistent with subscriber privacy provisions contained in the
Cable Act and applicable FCC regulations, every grantee shall make
the logs or records of complaints available to any authorized agent
of any franchising authority having a franchise with that grantee
or any authorized agent of a municipality considering a franchise
with that grantee upon request during normal business hours for on-site
review.
(i)Â
Remedies for violators. In addition to the remedies set forth elsewhere
in this chapter and in the franchise agreement, subscribers shall
have available the remedies provided by 30-A M.R.S.A. § 3010(7)
[Ord. of 4-5-1999]
(a)Â
City may regulate rates. The City may regulate all rates and charges
except to the extent it is prohibited from doing so by law, and no
rate or charge may be imposed or increased without the prior approval
of the City except such rates and charges that the City is prohibited
from regulating. Subject to the foregoing, any change made without
prior approval is an illegal change, and a grantee is prohibited from
requesting or requiring a subscriber to pay an illegal rate as a condition
of providing service. This section shall not be construed to mean
that any grantee has consented or will consent to subject itself to
rate regulation.
(b)Â
Authority to adopt regulations. All rates that are subject to regulation
by the City must be reasonable, the City may adopt such regulations,
procedures, and standards as it deems necessary to implement rate
regulation and may regulate rates by amendment to this chapter, by
a separate resolution or ordinance, by amendment to a franchise agreement,
or in any other lawful manner. This section shall not be construed
to mean that any grantee has consented or will consent to subject
itself to rate regulation.
(c)Â
Rate change:
(1)Â
Advance notice of rate changes. At least 30 days prior to implementing
any increases in rates, or changes in channel positions, programming,
or service terms or conditions, a grantee shall provide the City and
each subscriber with written notice describing any such changes it
plans to make and the proposed effective dates for the changes. A
grantee shall not be required to provide 30 days' notice of rate
decreases or temporary promotional offers that result in lower rates
for subscribers, provided that it has given the City notice of such
decreased and offers prior to implementation.
(2)Â
Explanation of rate changes. In addition to the required notice,
before it alters services or service terms or conditions, a grantee
must provide a reasonably simple and clear written notice explaining
the substance and full effect of the alteration, including the effect
on rates and service options and the effect of the change on the use
of other consumer electronic equipment. Such written notice shall
be provided to the City at least 30 days, and to subscribers at least
30 days, before the change.
(3)Â
Changes made without required notice invalid. Any change made without the required 30 days' notice shall be of no force or effect, and a grantee shall be obligated to refund any increased amount collected without the required 30 days' notice, and to restore service to the prior existing status, at least until the required notice is provided. This subsection shall not limit the right of a grantee to implement any rate decreases or temporary promotional offers that result in lower rates for subscribers immediately upon providing written notice of these rate changes to the City. This subsection shall not be interpreted to limit the City's right to exercise its rate regulation authority under Subsection 23-14(a) of this chapter, the availability of remedies under applicable laws or regulations, or rights under the customer service standards set forth in § 23-13 of this chapter.
[Ord. of 4-5-1999]
(a)Â
Open books and records. The City shall have the right to inspect
and copy at any time after reasonable notice during normal business
hours at a grantee's local office, all materials and records
of the grantee relevant to the City's management of the public
rights-of-way and regulation of customer service and consumer affairs
including all maps, plans, service complaint logs, performance test
results, records of requests for service, computer records, codes,
programs, and discs or other storage media and other like material
which the City reasonably deems appropriate in order to monitor compliance
with the terms of this chapter, a franchise agreement, or applicable
law. A grantee shall make available to the City, to the best of its
ability, the same types of materials which the City deems relevant
and which are held by an affiliate, a cable operator of the cable
system, and any contractor, subcontractor or any person holding any
form of management contract for the cable system. The grantee is responsible
for collecting, to the best of its ability, such requested information
and producing it at its offices in the greater Bangor area, and as
part of its application it must affirm that it can and will do so.
The City shall preserve the confidentiality on proprietary business
information of a grantee or another party provided to the City by
the grantee, to the extent permissible under Maine law. To that end,
the grantee shall clearly identify any proprietary business information
that it believes to be entitled to confidential treatment, so that
the City may establish appropriate safeguards against improper disclosure.
The City shall also have the right to inspect at any time after reasonable
notice during normal business hours at a grantee's local office
all materials relevant to the financial condition of the grantee,
including all books, records, receipts, contracts, financial statements,
computer records, codes, programs, and discs or other storage media
and other like material which the City reasonably deems appropriate
in order to monitor compliance with the terms of this chapter, a franchise
agreement, or applicable law. A grantee shall make available for inspection
by the City, to the best of its ability, the same types of materials
that the City deems relevant and that are held by an affiliate, a
cable operator of the cable system, and any contractor, subcontractor
or any person holding any form of management contract for the cable
system. The grantee is responsible for collecting, to the best if
its ability, such requested information and producing it at its offices
in the greater Bangor area, and as part of its application it must
affirm that it can and will do so. The City shall preserve the confidentiality
of propriety business information of a grantee provided for inspection
by the Maine law. To that end, the grantee shall clearly identify
and proprietary business information that it believes to be entitled
to confidential treatment, so that the City may establish appropriate
safeguards against improper disclosure.
(b)Â
Required reports. A grantee shall file the following with the City
in a form acceptable to the City:
(1)Â
Annual construction report. An annual report setting forth the
physical miles of plant construction and plant in operation during
the fiscal year shall be submitted to the City. Such report also shall
contain any revisions to the system, "as built" maps filed with the
City. The annual report shall be provided in February.
(2)Â
Notices instituting civil or criminal proceedings. Any notice
of deficiency, forfeiture, or other document issued by any state or
federal agency instituting any investigation or civil or criminal
proceeding regarding the cable system, the grantee, or any affiliate
of the grantee, to the extent the same may affect or bear on operations
in the City. A notice that an affiliate that has a management contract
for the cable system was not in compliance with FCC EEO requirements
would be deemed to affect or bear on operations in the City. This
material shall be submitted to the City at the time it is filed or
within five days of the date it is received.
(3)Â
Bankruptcy declarations. Any request for protection under bankruptcy
laws, or any judgment related to a declaration of bankruptcy by the
grantee directly or indirectly. This material shall be submitted to
the City at the time it is filed or within five days of the date it
is received.
(c)Â
Reports to be provided on request:
(1)Â
Reports required by FCC. Upon the City's request, a grantee
shall deliver to the City copies of all reports required by the FCC,
including, but not limited to, any proof of performance tests and
results, Equal Employment Opportunity reports, and all petitions,
pleadings, notices, and applications regarding the cable system, or
a group of cable systems of which the grantee's cable system
is a part, submitted or received by the grantee, an affiliate, or
any other person on the behalf of the grantee, either to or from the
FCC, or any other federal or state regulatory commission or agency
having jurisdiction over any matter affecting operation of the grantee's
system, for the time period specified in the City's request.
(2)Â
Financial reports. The City may request the following financial
reports for the franchise area once per calendar year:
a.Â
An ownership report, indicating all persons who at any time
during the preceding year did control or benefit from an interest
in the franchise of 5% or more.
b.Â
An annual income statement showing subscriber revenue from each
category of service and every source of non-subscriber revenue.
c.Â
A currant annual statement of all capital expenditures, including
the cost of construction and of equipment.
d.Â
An annual list of officers and members of the board of directors
of the grantee and any affiliates.
e.Â
An organizational chart showing what corporations or partnerships
with more than a 5% interest own the grantee, and the nature of that
ownership interest (limited partner, general partner, preferred shareholder,
etc.); and showing the same information for each corporation or partnership
so identified and so on until the ultimate corporate and partnership
interests are identified.
f.Â
An annual report of each entity identified in Subsection 23-15(c)(2)e which issues an annual report.
(3)Â
System and operational reports. The following system and operational
reports shall be submitted annually upon request of the City:
a.Â
An annual summary of the previous year's activities including,
but not limited to, subscriber totals for each category of service
offered, including number of pay units sold, new services offered,
and the amount collected annually from other users of the system and
the character and extent of the service rendered thereto.
b.Â
An annual projection of system and service plans for the future.
(d)Â
Additional reports. The grantee shall prepare and furnish to the
City, at a time reasonably prescribed by the City, such additional
reports with respect to its operation, affairs, transactions, or property
as the City may reasonably deem necessary and appropriate to the performance
of any of the rights, functions, or duties of the City in connection
with this chapter or the franchise agreement.
(e)Â
Records required:
(1)Â
Records to be maintained. A grantee shall at all times maintain
and shall deliver to the City upon request, the following records:
b.Â
A full and complete set of plans, records, and "as built" maps
showing the exact location of all system equipment installed or in
use in the City, exclusive of subscriber service drops.
c.Â
Records of outages, indicating date, duration, area, and the
estimated number of subscribers affected, type of outage, and cause.
d.Â
Records of service calls for repair and maintenance indicating
the date and time service was required, the date of acknowledgment
and date and time service was scheduled (if it was scheduled), and
the date and time service was provided, and (if different) the date
and time the problem was solved.
e.Â
Records of installation/reconnection and requests for service
extension, indicating date of request, date of acknowledgment, and
the date and time service was extended.
(2)Â
Additional information. The City may request and a grantee shall
promptly provide additional information, reports, records, and documents
as may be reasonably required from time for the performance by the
City of any its rights, functions, or duties in conversations with
this chapter or a franchise agreement.
(f)Â
Performance evaluation:
(1)Â
City discretion to hold public sessions. The City may, at its
discretion, hold scheduled performance evaluation sessions. All such
evaluation sessions shall be open to the public.
(2)Â
Announcement of sessions. All evaluation sessions shall be open
to the public and announced in a newspaper of general circulation.
(3)Â
Discussion topics. Topics that may be discussed at any scheduled
or special evaluation session may include, but are not limited to,
system performance and construction, grantee compliance with this
chapter and a franchise agreement, customer service and complaint
response, subscriber privacy, services provided, programming offered,
service rate structures, if applicable, franchise fees, penalties,
free or discounted services, applications of new technologies, judicial
and FCC filings, and line extensions.
(4)Â
Grantee cooperation. During the review and evaluation by the
City, a grantee shall fully cooperate with the City and shall provide
such information and documents as the City may need to reasonably
perform its review.
(g)Â
Voluminous materials. If the books, records, maps or plans, or other
requested documents are too voluminous, or for security reasons cannot
be copied and moved, then a grantee may request that the inspection
take place at some other location, provided that (i) the grantee must
make necessary arrangements for copying documents selected by the
City after review; and (ii) the grantee must pay reasonable travel
and additional copying expenses incurred by the City in inspecting
those documents or having those documents inspected by its designee.
(h)Â
Retention of records; relation to privacy rights. Each grantee shall
take all steps required, if any, to ensure that it is able to provide
the City all information which must be provided or may be requested
under this chapter or a franchise agreement, including by providing
appropriate subscriber privacy notices. Nothing in this section shall
be read to require a grantee to violate 47 U.S.C. § 551.
Each grantee shall be responsible for blacking out any data that federal
law prevents it from providing to the City.
[Ord. of 4-5-1999]
(a)Â
Discriminatory practices prohibited:
(1)Â
Discrimination prohibited. A grantee shall not deny service,
deny access, or otherwise discriminate against subscribers, programmers,
or residents of the City on the basis of race, color, religion, national
origin, sex, age, physical handicap, or on any other basis prohibited
by federal or state law. This provision is not intended to require
a grantee to provide any equipment or service free of charge to any
subscriber, unless such equipment or service is provided free in a
manner that discriminates among subscribers in a manner that is prohibited
by state or federal law, or unless the provision of free equipment
or service is required by state or federal law.
(2)Â
Discrimination for exercise of right prohibited. A grantee shall
not discriminate among persons or take any retaliatory action against
a person because of that person's exercise or any right it may
have under federal, state, or local law, nor may the grantee require
a person to waive such rights as a condition of taking service.
(3)Â
Differential rates based on subscriber income prohibited. A
grantee shall not deny access or levy different rates and charges
on the residents of any particular geographical area because of the
income of the residents of that geographical area.
(4)Â
Rate preferences prohibited. Except to the extent the City may
not enforce such a requirement, a grantee is prohibited from discriminating
in its rates or charges or from granting undue preferences to any
subscriber, potential subscriber, or group of subscribers or potential
subscribers; provided, however, that a grantee may offer temporary,
bona fide promotional discounts in order to attract or maintain subscribers,
so long as such discounts are offered on a non-discriminatory basis
to similar classes of subscribers throughout the City; a grantee may
offer discounts for the elderly, the handicapped, or the economically
disadvantaged, and such other discounts as it is expressly entitled
to provide under federal law, if such discounts are applied in a uniform
and consistent manner; and a grantee may enter into bulk service agreements
with multiple dwelling unit owners, if the rates under such agreements
are established and applied in a uniform and consistent manner. A
grantee shall comply at all times with all applicable federal, state,
and City laws, and all executive and administrative orders relating
to non-discrimination.
(b)Â
Equal employment opportunity. A grantee shall not refuse to employ,
discharge from employment, or discriminate against any person in compensation
or in terms, conditions, or privileges of employment because of race,
color, religion, national origin, sex, age, or any other basis prohibited
by federal or state law. A grantee shall comply with all federal,
state, and local laws and regulations governing equal employment opportunities.
(c)Â
Subscriber privacy:
(1)Â
Grantee shall protect subscriber privacy. A grantee shall at
all times protect the privacy of all subscribers pursuant to the provisions
of Section 631 of the Cable Act, 47 U.S.C. § 3010 (6-A).
A grantee shall not condition subscriber service on the subscriber's
grant of permission to disclose information which, pursuant to federal
or state law, cannot be disclosed without the subscriber's explicit
consent.
(2)Â
Selling subscriber information prohibited. Neither a grantee
nor its agents or employees shall, without the prior and specific
written authorization of the subscriber involved, sell or otherwise
make available for commercial purposes the names, addresses, or telephone
numbers of any subscriber or subscribers, or any information that
identifies the individual viewing habits of any subscriber or subscribers.
[Ord. of 4-5-1999]
(a)Â
Compliance with laws. A grantee shall comply with all applicable
federal, state, and local laws and regulations as they become effective,
unless otherwise stated.
(b)Â
Force majeure. A grantee shall not be deemed in default with provisions
of its franchise where performance was rendered impossible by war
or riots, civil disturbances, floods, or other natural catastrophes
beyond the grantee's control, and a franchise shall not be revoked
or a grantee penalized for such noncompliance, provided that the grantee
takes immediate and diligent steps to bring itself back into compliance
and to comply as soon as possible under the circumstances with its
franchise without unduly endangering the health, safety, and integrity
of the grantee's employees or property, or the health, safety,
and integrity of the public, public rights-of-way, public property,
or private property.
(c)Â
Connections to system; use of antennae:
(1)Â
Subscriber right to attach devices. Subscribers shall have the
right to attach devices to a grantee's system to allow them to
transmit signals or services for which they have paid to VCR's,
receivers, and other terminals provided that such terminals are located
within the subscriber's premises, and provided that such transmissions
do not result in interference with the operations of grantee's
system. Subscribers also shall have the right to use their own legally
acquired remote control devices and tuners, and other similar equipment,
and a grantee shall provide information to consumers which will allow
them to adjust such devices so that they may be used with the grantee's
system.
(2)Â
Requiring disconnection of antennae prohibited. A grantee shall
not, as a condition of providing service, require a subscriber or
potential subscriber to remove any existing antenna, or disconnect
an antenna except at the express direction of the subscriber or potential
subscriber, or prohibit or discourage a subscriber form installing
an antenna switch, provided that such equipment and installations
are consistent with applicable codes.
(3)Â
Calculation of time. Unless otherwise indicated, when the performance
or doing of any act, duty, matter, or payment is required hereunder
and a period of time or duration for the fulfillment of doing thereof
is prescribed and is fixed herein, the time shall be computed so as
to exclude the first and include the last day of the prescribed or
fixed period of duration time.
(d)Â
Severability. If any term, condition, or provision of this chapter
shall, to any extent, be held to be invalid or unenforceable, the
remainder hereof shall be valid in all other respects and continue
to be effective. In the event of a subsequent change in applicable
law so that the provision shall thereupon return to full force and
effect without further action by the City and shall thereafter be
binding on the grantee and the City.
(e)Â
Captions. The captions and headings of this chapter are for convenience
and reference purposes only and shall not affect in any way the meaning
and interpretation of any provisions of this chapter.
(f)Â
Repeal. [Former] Chapter 23, Ordinances of the City of Old Town,
is hereby repealed, except that the repeal thereof shall not affect
the validity of any franchise agreements issued pursuant thereto and
except that said ordinance shall remain in full force and effect for
the trial and punishment of all past violations thereof and for recovery
of penalties already incurred.
